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Mother Appeals Against Final Parenting Orders

Thornton & Little [2022] FedCFamC1A 49 (8 April 2022)

The mother appeals against final parenting orders made which provided for the child to live with the father. 

The mother contended that the primary judge’s acceptance of the opinion of Dr C that the mother had a disturbed and dysfunctional attachment to the child was erroneous.  The Court, in making its orders, determined whether the evidence of the single expert was inconsistent with the evidence in the proceedings.

Facts:

On 24 November 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) made a suite of parenting orders in proceedings between Mr Little (“the father”) and Ms Thornton (“the mother”) concerning their child, X (“the child”) who was born in 2019.  

The orders provided for the father to have sole parental responsibility for the child who was to live with him, whereas previously the child had lived with the mother. 

The orders provided for the child to spend time with the mother initially to spend from 5.00 pm on Friday to 5.00 pm on Sunday every second week, with that time extending on 18 May 2022 to include the Monday morning until 8.00 am.  From May 2024, the time with the mother is to become from 5.00 pm on Friday to 8.00 am on Tuesday every second week. Orders were also made for holidays and special days.

Appeal No. NAA 70 of 2021 is the mother’s appeal against these orders.  The father opposed the appeal.  

On 7 December 2021, the primary judge refused to stay the operation of the orders on 24 November 2021. 

The mother’s appeal against that refusal is Appeal No. NAA 6 of 2022.  

The primary judge found that there should be a change in residence, having regard to the father as having good insight in relation to the detrimental impact which parental conflict will have upon the child and of his overall aversion to conflict.  He accepted that the mother has demonstrated a near complete incapacity to support their child having a relationship with her father and extended paternal family.

Neither party was found to have posed a risk of harm to the child.  The parties’ short relationship began in March 2018.  The mother says that the relationship ended before the child was born in March 2019, whereas the father says that it ended in June 2019.  The parenting proceedings commenced shortly thereafter on 19 June 2019.  The parties reconciled in September 2019 and the proceedings were discontinued two months later.  According to the father, the parties finally separated in May 2020, whereas the mother maintained that it was March 2019.

The mother refused to allow the child to spend time with the father until orders were made on 19 October 2020 for the child to live with the mother and spend supervised time with the father, with proceedings having been recommenced on 8 July 2020.  

On 15 February 2021, the parties attended Dr C who prepared a report recommending that the child spend more time with the father in a less structured environment.  On 15 March 2021, orders were made extending the time the child was to spend with the father and dispensing with the need for supervision.   When the matter came before the Court on 19 August 2021 for interim parenting orders, the father was seeking that the child live with him and the mother was proposing orders permitting her to take the child to live with her in Queensland. 

Issue:

Whether or not the appeal should be allowed. 

Applicable law:

Family Law Act 1975 (Cth) s 69ZW - provides that the court may make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705[2001] NSWCA 305 - where it is well established that “[t]he basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based”. 
 
Metwally v University of Wollongong (1985) 60 ALR 68[1985] HCA 28 - provides that except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
 
Skorpos & Anor v United Petroleum Pty Ltd [2013] SASCFC 117 - concluded that there are both semantic and substantive difficulties in the proposition that a judgment is attended by error if the issue which it is contended was wrongly adjudicated was never submitted to the court.
 
Stokes v The Queen (1960) 105 CLR 279[1960] HCA 95 - provides that if an error of law or misdirection “is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered”.
 
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418[1950] HCA 35 - provides that where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.
 
Warren v Coombes (1979) 142 CLR 531[1979] HCA 9 - provides that there is no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. 
 
Water Board v Moustakas (1988) 180 CLR 491[1988] HCA 12 - held that where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

Analysis:

Dr C was not in a position to give evidence as to the child’s attendance at playgroup and the like because he had no direct knowledge of it.  Any opinion of his which was based on the lack of attendance was based on that as an assumption.  Unless and until that assumption was established by other evidence, any opinion of Dr C so based was not admissible and, if admitted, could not be given weight. 

Counsel for the mother’s second complaint that the statement made by Dr C that the child had not attended activities, was not an expert opinion based on the expertise of the witness.

Mr B, a psychologist who conducted a personality assessment of the mother, disagreed that the mother’s traits were a personality bound issue and thought that the mother’s conduct merely reflected bad behaviour.  

It was Region BB Health’s view that there were no attachment issues between the mother and the child and that the child’s regression was caused by the toxic behaviour of both her parents and the conflict in which the child was now involved.  

As an opinion of an expert must be based upon facts or assumptions that are established by the evidence and as Dr C seems to have been mistaken as to the evidence, his opinion that the child was not well socialised was based on an incorrect premise.

Conclusion:

The Court dismissed Appeal No. NAA 6 of 2022.  

Appeal No. NAA 70 of 2021 is allowed.  

The orders of 24 November 2021 are set aside.  

The orders made on 19 October 2020, as amended on 15 March 2021 and 20 August 2021 are to apply.  

The matter is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.  

The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).  

The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).  

The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth). 

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